The Future Of OCR’s Dear Colleague

At Minding the Campus, K.C. Johnson tries to discern the implications of a paradigm shift in governance on what it means for Title IX. The foundation, mentioned here on occasion, produced a scenario of devastation for some, jubilation for others.

Since 2011, the federal government has made successful and devastating efforts to undermine civil liberties on campuses. The surprise outcome of the presidential election raises at least the possibility that this illicit campaign, based on a vast extension of Title IX, will be reversed. Thousands of students accused of sexual misconduct but denied due process have been victimized by the frenzy stimulated by the Education Department’s Office for Civil Rights (OCR), and by the unfair procedures that OCR has championed. (Consider events at Amherst or Yale or UVA or Brandeis, for starters.)

From the perspective that the evisceration of due process, the extension of Title IX into campus adjudications of every ill, real or perceived, was lawful, that a post-factual society is better than a factual society* is a bad thing. Will it be fixed?

President Obama’s two heads of the OCR have ignored the requirements of the Administrative Procedure Act and imposed their dubious interpretations of Title IX without required notice and comment. They never offered a convincing explanation as to why, in part because Congress only rarely pressed them; outgoing OCR head Catherine Lhamon purported to justify OCR’s actions in this exchange with Tennessee senator Lamar Alexander, but only revealed herself to be ignorant of congressional authority.

But the arrogance of Lhamon and her predecessor, Russlynn Ali, means that the 2011 “Dear Colleague” letter—and OCR’s even more troubling 2014 guidance, which suggested that OCR’s imaginative interpretation of Title IX could trump the constitutional protection of due process promised to all students at public universities—can be withdrawn without going through the notice-and-comment process.

All of this is true, and yet, doesn’t quite address either the situation or mandate. The “arrogance” of the Dear Colleague letters doesn’t mean that colleges, their bureaucracies built around implementation of the letters and the indoctrinated students and faculty who have become adherents to Lhamon’s and Ali’s orthodoxy, will go away.

Even if this letter, issued lawlessly, is withdrawn, that does not mean colleges will change their tune. Sure, they won’t have the Dear Colleague letters to fall back on as an excuse, but that doesn’t mean academia doesn’t actually like, no love, what Lhamon rammed down their throats.

K.C. is more sanguine than I am that there is, at some level, a desire in higher education to break free of the tyranny of Lhamon’s Title IX. The problem is that if the Dear Colleague letters are withdrawn, if OCR sends out a new Dear Colleague letter that says, “what we said before? Never mind. Only kidding. Lulz,” it will not compel colleges to forsake the structure of their Title IX systems, put in place at great expense and applauded by the passionate believers.

In order to change systems that have been designed to avoid due process, that place burdens of proof (whatever that turns out to be) on the accuser, that allows for the possibility that the accused isn’t guilty, or even if he isn’t guilty, shouldn’t be punished, it may well require a new, more affirmative push by the Department of Education requiring colleges to fundamentally alter everything they’ve been told they had to do over the past few years in order to create a constitutionally appropriate system.

While there is no assurance that the old Lhamon/Ali Dear Colleague letters will be withdrawn, the question raised if they are is whether the new OCR will take the aggressive action of not only abandoning the old regime, but implementing a new regime that requires colleges to adhere to due process? If the only response under a less progressive DoE is that colleges no longer have to use a preponderance standard, or that they are free to deny an accused the opportunity to know the factual basis for allegations against him before requiring him to defend himself, does that mean they will do anything differently on their own?

But there is a deeper question that many gloss over. Should colleges remain in the business of adjudicating conduct that is criminal? We had a system to do that before, but it failed to meet the demands of students and faculty because it took too long, was too onerous and required evidence. Worse still, crimes involved elements, conduct, notice, the very components that precluded a “rape” from being whatever a woman felt it was, then or a year later.

One of the goals of introducing value judgments into adjudications is to subvert the definitions and understandings of words and concepts to suit Lhamon’s policy objectives. Is there any college that adheres to “no means no” rather than “yes means yes”? Is there any college that won’t deem sex a rape if a woman claims she had a drink beforehand because of the bastardization of incapacitation? Hell, is there any college that doesn’t adhere to believe the accuser as the default, because, well, that’s the politically correct thing to do?

This orthodoxy of campus Title IX adjudication has not only been established by procedure in compliance with the Dear Colleague letters, but has been taken to heart by administrators, faculty and students. It won’t undo itself. Will the next administration go through the trouble of forcing higher education to reintroduce reason and due process to its Title IX compliance?

That’s a tall order, and it’s unclear whether the president so despised by the Know Your IX crowd feels as strongly about due process as they do about him.

*For those who find the phrase “post-factual society” unfamiliar, it is a society that rejects facts in favor of feelings about facts. See also, truthiness.

I think you’re right, that the incentives will shift. But then, there are also strong incentives to please the kidz feels, and lawsuits take a long time before colleges have to actually reach into their pockets. A lot of harm can be done between now and then.

As soon as the admin changes rules, absent a requirement to add due process, the rallying cry against the administrators by angry donors alumni will be fierce. They will show images of “victims” that can’t “get justice” because the admin cares more about “rapists”.

SHG is right. Absent affirmative rules, unless someone values due process more than their livelihood, I can’t see admins changing the rules on their own.

“Let’s hope the lawsuits from students keep coming.” There no cause of action for removing the means of punishing the bad rapists, right??

I need to get out more often. When I read OCR I immediately thought of Optical Character Recognition. When I see BLM I naturally think of Bureau of Land Management. Maybe I need to write a little glossary of abbreviations and keep it current.

You’ve gotten it exactly right, alas. It only gets worse year to year. Older folks with a bit of sanity on our campuses are replaced by full-blown ideological zealots who utilize their uncontested institutional power to move us from open universities to partisan centers of thought reform, double standards, and the cultural left’s reformation of our souls and our society. At best, if “Dear Colleague” is revoked, a modest number of universities will raise the standard of proof in their kangaroo courts to an easily found “clear and convincing.” If the lawsuits by the objects of these unconscionable procedures should be against individual abusers of power in addition to the institutions—with the former unprotected by absolute immunity because they personally chose to violate statute or, if applicable, the Constitution—then we’d get somewhere…… but that is a complex “if.”

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Scott H. Greenfield

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